Second look at immunity for Lerner?

posted at 11:01 am on May 11, 2014 by Jazz Shaw

I’ve been opposed to the idea of offering any sort of immunity to Lois Lerner since this entire brouhaha erupted, and I also opposed the idea of recognizing her taking the 5th in a situation where she was not on trial, not charged with any crime and innocent of any wrongdoing by her own statement under oath. Thus far, however, this hasn’t proven to be a particularly practical position in terms of getting to the bottom of things. Andrew McCarthy has an essay out this weekend in which he argues that it may be long past time to offer Lerner immunity for any of her previous actions in the greater interest of fixing a broken system.

In this week’s episode of the Capitol Hill soap opera, Lois Lerner, the apparatchik at the center of the IRS jihad against conservative groups, was at long, long last held in contempt of Congress. Amid the farce, the House’s IRS probe is floundering.

Ironically, this happens just as the chamber’s separate probe of the Benghazi massacre has been given a chance to succeed. That is because House speaker John Boehner, after over a year of delay, has finally agreed to appoint a “select committee” to investigate Benghazi. Congress has no constitutional authority to enforce the laws it writes, a power our system vests solely in the executive branch. But a select committee, with a mission to find out what happened — as opposed to conducting oversight through the prism of some committee’s narrow subject-matter jurisdiction (judiciary, budget, education, reform, etc.) — is the closest legislative analogue to a grand jury.

McCarthy offers praise for the too long delayed select committee on Benghazi and notes that – if handled properly – it can achieve what endless rounds of blustering on the floor of the lower chamber and cable news talking head gab festivals will not. But the author also recognizes the unsatisfying taste of simply handing Lerner a free pass. In light of that, he offers consolation on how the big picture is more important than short term satisfaction.

Sometimes, behavior is heinous but essentially private — i.e., of interest mainly to the people directly affected by the misconduct. In such cases, the priority is to prosecute and punish the wrongdoers, so you obviously resist granting immunity to a culpable party.

In other situations, reprehensible behavior affects the public at large. This is almost always the case when government power has been abused: The gravity of the misconduct transcends the injury to the private parties directly affected. It portends rampant violation of fundamental rights and undermines our trust in faithful execution of the laws. In such circumstances, it is imperative to achieve political accountability and a complete record of what went wrong so that any necessary policy changes can be made. Holding wrongdoers criminally culpable is secondary.

The shorter translation of what McCarthy is trying to convey here is that no matter how satisfying it might be to see Lerner doing an orange clad, belly chained perp walk out of the chambers, the desire for such an outcome is less important that finding out where the larger system broke down in the first place. It is even more important to identify those culpable at the highest levels, not just in the office where the levers of power were being fiddled.

While unsatisfying, as I said above, the logic of this is difficult to refute. But it only works if one critical assumption is valid. Would Lois Lerner go for it and spill the beans under oath with a ticket to full immunity tucked in her purse? In order for that to be true it would rely on her believing that she remains in potential future jeopardy. The investigation has stalled. She’s no doubt received more than a few messages from her own team telling her to stand strong and assuring her that this won’t go anywhere as long as everyone sticks to their story. She would be sacrificing her own reputation, burning all of her allied bridges and ending her public life to testify against her own bosses. That’s a lot to overcome, particularly if she’s feeling like the bulk of the storm has already passed and left her still standing.

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He’d be right if the investigations were stalled. They aren’t. IRS just one week ago finally agreed to release ALL Lerner’s emails. Shouldn’t we at least look through them for clues before we offer her immunity?

As a former assistant USAt, McCarthy should know it is unwise to offer immunity to a witness before you know exactly what they are going to say. There should be a proffer from her attorney, and the deal specify that immunity is revoked if she testifies any differently than it.

Without that, she just grabs immunity and says, “All my idea! I did it all! Up yours, Republicans!” and walks away.

Her boss Shulman visited the White House at least once a week, usually more, for a year and a half, but can’t remember who he met with or what they talked about. There’s a whole big ripe field for inquiry right there before we start giving out the “Get Out of Jail Free” cards.

Way too soon to consider immunity. The mass of Civil cases coming after Lerner will have an effect especially when a plead of the 5th in civil court presumes guilt. The volume of emails still pending, the pressures of civil trials that may drain her war chest, and the mounting evidence of criminal behavior will make her crack. Immunity serves little more at this point than an early start of her lucrative retirement.

Boehner said that he didn’t want to do that because it had never been done before but I’m not sure that’s true.

Cindy Munford on May 11, 2014 at 4:44 PM

Bo(eh)ner is flat-out lying. Congressional Jail has been used dozens of times, the last time in 1934 to lock up the lawyer of a former Postmaster General and other clients in the Air Mail “scandal” (really, a Rat attempt to seize control of air mail). In fact, that case reaffirmed the right of Congress to maintain Congressional Jail.

Here’s an idea that serves all parties. Request a proffer of what she will swear under oath. If valid, and if it holds up offer her use immunity from prosecution. With the caveat that for even claiming the 5th and seeking to shield herself from legitimate and lawful Congressional Oversight she as a Sworn Government Officer is duly stripped of any and all protections afforded government officials or actors from civil liability. The Feds will not prosecute her, but True the Vote and company may sue in State or Federal Court.

You can’t make a statement and then hop off the stage. You speak, you waive your rights.

xNavigator on May 11, 2014 at 3:18 PM

Where does it say that? More importantly, who do we want determining that? The government? The 5th amendment exists to protect us from the government.
I see your point and am not going to lose sleep over this, however, I don’t think it’s a great precedent to be setting. Even for a little louse like this.

If you plead the 5th you are protected under criminal law from self incrimination, not the presumption of guilt under civil law.

Lois Lerner is highly motivated via her attorney to bait every opportunity with fat promises of the benefits of her immunity. Investigators should run from any deal of cooperation from Lerner. There is simply no immediate urgency to grant her an escape while so many more of her e-mails are about to be unloaded in public.

It would be a mistake to grant Ms. Lerner immunity. The smart tactic would be to grant immunity to her subordinates, those that worked under her – like offering a plea deal to a small fish to catch a big fish.

Go back and read the 5th Amendment. It states: “…nor shall be compelled in any criminal case to be a witness against himself,..”

A Congressional Hearing is not a criminal case, although lying to Congress or failing to provide testimony can result in criminal contempt. What Issa should have said is: “Ms Lerner, this is not a criminal case, so the 5th Amendment does not apply. Now please answer the question.”

It would be a mistake to grant Ms. Lerner immunity. The smart tactic would be to grant immunity to her subordinates, those that worked under her – like offering a plea deal to a small fish to catch a big fish.

eaglescout_1998 on May 11, 2014 at 11:47 PM

Immunity is offered after they ascertain that the information they receive with immunity is sufficient to grant it.

Other words, if they grant immunity, they get a BIG fish. In a way, restating what you are saying, giving immunity to a subordinate.

Directing the use of the IRS to punish American Citizens for having the AUDACITY to not agree with Barack HUSSEIN Obama is a crime, no?

Or would you have no problem with George Bush using the IRS to go after Planned Parenthood, the NAA(L)CP, Media Matters, etc?

ConstantineXI on May 11, 2014 at 7:45 PM

Her job at the IRS was to investigate groups claiming tax-exempt status who did not qualify for tax-exempt status. Ultimately, she is on trial for being good at her job and being directed at Republican groups over Democratic Party groups.

The conclusion to draw is that the IRS, ironically, is not independent enough and needs more power, so they can target the governing party for tax-exempt groups as well. I don’t think that’s the conclusion you’d like it to have though.

The needle being threaded here is that the Republican led congressional investigation of the IRS would love to find evidence of Democratic shenanigans at the IRS, but they don’t want to put an end to the quiet control over IRS policy from the white house. This is because when they retake the white house one day, they want to still have that power.

The conclusion to draw is that the IRS, ironically, is not independent enough and needs more power, so they can target the governing party for tax-exempt groups as well. I don’t think that’s the conclusion you’d like it to have though.

James Dahl on May 12, 2014 at 11:16 AM

You make a good point, but perhaps not the one you intended to make. The IRS needs to be abolished and the income tax completely banned and replaced by a national VAT/sales tax.

Of course it won’t happen, for the reason you already pointed out.

As things stand, most federal bureaucrats are Democrats and leftist in their thinking. It obviously follows from the nature of the work they do. So abuse of the bureaucracy’s power by the Democrats will always be orders of magnitude worse than under the GOP.

As long as the bureaucracy and our media are dominated by Democrats/leftists, the People should be electing solid GOP/conservative people to Congress and the White House to manage that bureaucracy.

She’s no doubt received more than a few messages from her own team telling her to stand strong and assuring her that this won’t go anywhere as long as everyone sticks to their story.

Not sure what you mean by “their story”. As I recall, it was her telling the story of corrupt practices at the IRS (to get ahead of the IG report) that started this whole thing. Is that the story everyone will be sticking to? No, of course not. It’ll be the “not a shred of corruption” story that came out months later, with everyone seemingly forgetting that they ADMITTED to the corruption in the first place.

Her job at the IRS was to investigate groups claiming tax-exempt status who did not qualify for tax-exempt status. Ultimately, she is on trial for being good at her job and being directed at Republican groups over Democratic Party groups.